Limiting Liability

It is a good idea to actively review the risks of an activity. You should look at ways to minimize risks where possible. This in turn will reduce the risk of liability for those involved. This can also help determine whether the activity is worth it.

Organizations can use waivers to reduce the risk of being sued if someone is harmed. The court will consider a number of things when determining if a waiver will limit liability.

The person must have signed the waiver and known what they were signing. For this reason, waivers should be written in plain language that is easy to understand.

A waiver must be clear such that a reasonable person would know that they are agreeing not to sue. If not, the person presenting the waiver must have taken reasonable steps to bring this to their attention. This can be done, for example, by giving the person a verbal explanation or by bolding or highlighting certain words in the waiver.

Waivers must also clearly state risks being excluded. Risks such as property damage or death, for example, should be specifically mentioned if they are part of the waiver.

Waivers must be worded so that they apply to the conduct that caused the injury. For example, a waiver could specify that a participant cannot sue based on being provided insufficient instructions.

Waivers must also cover the particular activity that caused the injury. For example, a waiver could cover a particular trip. If the injury did not happen during the trip, the waiver could not be used to limit liability.

A disclaimer, unlike a waiver, does not ask the participant to agree not to sue for certain losses. Disclaimers provide information to participants. They must be brought to the participant’s attention before they participate. The fact that they have this information can limit the organization’s liability.

For example, a participant that has been warned that food may contain peanut products may be expected to not eat the food if they have an allergy. Disclaimers can also be used to warn that advice or information may not be accurate, complete or up to date.

Requiring parents to sign consent forms for their children is common. This can protect organizations from being sued simply for allowing the child to take part in an activity. Parents, however, cannot consent to negligent treatment of their children. If a child is injured by negligence, a consent form will likely not prevent a negligence claim.

Following standard practices can help to show that reasonable care has been taken. However, just because the practice is common, does not necessarily mean that reasonable care has been taken. Common practices can still be dangerous. On the other hand, they can also have a proven history of good practice. In this case, not following standard practice can be evidence that reasonable care was not taken.

Organizations may want to have insurance to protect the assets of the organization from a potential lawsuit based on negligence. They can also choose to insure their volunteers against negligence claims. This may not be necessary to protect volunteers. For example, volunteer directors of a non-profit cannot be sued for negligence if they act in good faith and within the scope of their authority.

Volunteers may be covered by their own vehicle insurance or home insurance in some cases. For example, standard vehicle insurance protects owners who injure others or their property but only up to a monetary limit. Volunteers may want to consider additional coverage, and organizations may want to cover the cost of this to ensure that volunteers are adequately covered.

Organizations may also want to consider insurance to cover volunteers who are injured while volunteering. Volunteers will not generally be eligible for workers’ compensation. This could leave an injured volunteer out of work without any compensation. In some situations, however, they may qualify for Employment Insurance Sickness Benefits.